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Gregg v. Georgia

Modern U.S. death penalty JURISPRUDENCE begins with the U.S. Supreme Court's decision in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed.2d 859 (1976). In that landmark case, the Court rejected the idea that CAPITAL PUNISHMENT is inherently CRUEL AND UNUSUAL PUNISHMENT under the EIGHTH AMENDMENT. In addition, it endorsed new state death penalty statutes that sought to address the criticisms that the Court had raised in FURMAN V. GEORGIA, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed.2d 346 (1972). These statutes split the criminal trial into a guilt phase and a penalty phase, gave jurors specific aggravating and mitigating factors to consider in deliberating the death penalty, and mandated appellate review with designated factors for the court to consider. Finally, the states removed capital punishment as a sentencing option for crimes other than murder. Since Gregg, the issues surrounding the death penalty have turned on procedural fairness rather than questions of societal values.

By the early 1970s, the death penalty had been removed from the statute books in many countries, including Austria, Denmark, Great Britain, Portugal, Switzerland, Brazil, and Venezuela. In the United States, criticism of the ARBITRARY administration of capital punishment and its application to crimes other than murder led to judicial challenges based on the Eighth Amendment's Cruel and Unusual Punishment proscription. The number of executions had dwindled, and public opinion polls suggested that the death penalty was no longer as popular. Therefore, opponents were optimistic when the U.S. Supreme Court struck down three death sentences in Furman.However, the Court's manner of deciding the case revealed a split in the way that the justices looked at the death penalty. Furman, which came on a 5–4 vote, was issued as a per curiam decision, which takes the form of a brief, unsigned opinion. Such a decision does not have as great a precedential value as a signed opinion, as it indicates that the court was deeply divided over the reasons that went into its ultimate decision either to affirm or reverse a decision. Each justice filed a separate opinion, with only Justices WILLIAM BRENNAN and THURGOOD MARSHALL declaring that the death penalty is intrinsically cruel and unusual punishment. Others on the Court who reversed the sentences indicated that capital punishment might be constitutional if the states administered it fairly and rationally so as to serve legitimate societal needs.

Georgia set out to address these concerns, and its legislature passed a comprehensive death-penalty-reform law. It established a bifurcated trial process, in which guilt or innocence is to be decided first. If the defendant were found guilty of a capital crime, the jury then entered a penalty phase. The state developed a list of 14 "aggravating circumstances," any one of which could justify the death penalty. The jury had to find BEYOND A REASONABLE DOUBT that an aggravating circumstance applied. The defendant was also given the opportunity to present "mitigating circumstances" to the jury in hopes of overcoming the aggravating circumstances. These included the youth of the defendant, the defendant's cooperation with police, and the defendant's emotional state at the time of the crime. If the jury imposed the death penalty, the Georgia Supreme Court was mandated to review the decision. It was told to consider whether passion or prejudice influenced the sentence, whether the evidence of aggravating circumstances was sufficient, and whether the penalty was disproportional or excessive in comparison to similar cases and defendants.

The new law was applied at the trial of Troy Gregg for two counts each of armed ROBBERY and murder. Gregg was convicted, and during the penalty phase the prosecutor offered evidence of aggravating circumstances. The jury found beyond a reasonable doubt that Gregg had committed the murders during the commission of another capital crime and for the purpose of taking a victim's property. These two circumstances sustained the death-penalty verdict. On appeal, the Georgia Supreme Court upheld the sentence, finding that the verdict was fair, based on the three factors it was instructed to review. However, it sustained the death penalty on only the second aggravating circumstance. It threw out the armed-robbery circumstance because the death penalty had rarely been imposed for that crime. Gregg then appealed to the U.S. Supreme Court.

The U.S. Supreme Court upheld the decision on a 7–2 vote. Justice POTTER STEWART announced the judgment of the Court in an opinion joined by two other justices. Four justices agreed with the affirmance, but for different reasons. Stewart retraced the Furman decision and noted that only two justices had taken an absolutist position against the death penalty. The Court then declared that the death penalty was not inherently cruel and unusual punishment. The Eighth Amendment incorporated a "basic concept of dignity," which was consistent with the purposes of deterrence and of retribution. As long as it was proportional to the severity of the crime, the death penalty was not unconstitutional. Stewart also stated that legislatures do not have to prove that capital punishment deters crime; nor must they enact the least severe penalty possible. Finally, Stewart noted a telling change in U.S. public opinion, demonstrating that the public supported capital punishment. The rush of legislatures to modify their death penalty statutes did not take place in a vacuum.

Having disposed of the threshold issue, Stewart examined the Georgia statutory framework. He found the framework constitutional, as each element worked to prevent the arbitrary and disproportionate death sentences criticized in Furman. Gregg had argued that other elements undercut the statutory framework. These included prosecutorial discretion, plea-bargaining and executive clemency. Stewart rejected these arguments, noting that the Georgia law required the jury to consider aggravating and mitigating factors as applied to the individual defendant.

Justices Brennan and Marshall again dissented on absolutist grounds, arguing that the time had passed for the state to execute criminals.


Hall, Kermit L. 1989. The Magic Mirror: Law in American History. New York: Oxford Univ. Press.

Stephens, Otis H., Jr., and John M. Scheb III. 1993. American Constitutional Law. St. Paul, Minn.: West.

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